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Figueroa v. Allstate Insurance Co.

Decided: December 13, 1985.

HECTOR FIGUEROA, PLAINTIFF,
v.
ALLSTATE INSURANCE COMPANY, DEFENDANT



deCordova, J.s.c.

Decordova

When does "municipality" mean municipality? We are asked this question by way of cross motions for partial summary judgment in an action for Personal Injury Protection (PIP) benefits by plaintiff Hector Figueroa against defendant Allstate Insurance Company. There is no reported case on this subject.*fn1 Both sides agree on the facts; therefore, the court will declare the rights of the parties by interpreting the meaning of N.J.S.A. 39:6A-13d, a section under the Automobile Reparation Reform Act. See Uniform Declaratory Judgments Act, N.J.S.A. 2A:16-50 et seq.

On April 8, 1984 plaintiff was injured in an accident involving a private passenger motor vehicle. Despite repeated demands for reparation under the terms of his insurance policy, plaintiff alleges that defendant refused to provide proper payment. Defendant admits that payment has been withheld but formally responds that it has fully complied with the provisions of N.J.S.A. 39:6A:1 et seq. and therefore is justified in its action. As a defense, defendant contends that it is relieved of liability because plaintiff failed to comply with N.J.S.A. 39:6A-1 et seq., by refusing to undergo certain neurological and orthopedic examinations it requested on April 16, 1984.

In support of his refusal to cooperate, plaintiff cites N.J.S.A. 39:6A-13d, which says, "[s]uch [physical] examination shall be conducted within the municipality of residence of the injured person." Plaintiff, a resident of Paterson, was asked to be examined by Doctors Frank Riccioli and Chris Mattheou, specialists who practice in Clifton and Passaic, respectively. On October 21, 1985 plaintiff moved to strike this latter defense concerning plaintiff's refusal to appear.

N.J.S.A. 39:6A-13d governs discovery of facts as to personal injury protection coverage and states in full:

Whenever the mental or physical condition of an injured person covered by personal injury protection is material to any claim that has been or may be made for past or future personal injury protection benefits, such person shall, upon request of an insurer or the Unsatisfied Claim and Judgment Fund submit to mental or physical examination by a physician or physicians. The cost of any examinations requested by an insurer or the Unsatisfied Claim and Judgment Fund shall be borne entirely by whomever makes such request. Such examination shall be conducted within the municipality of residence of the injured person. If there is no qualified physician to conduct the examination within the municipality of residence of the injured person, then such examination shall be conducted in an area of the closest proximity to the injured person's residence. Personal protection insurers are authorized to include reasonable provisions in personal injury protection coverage policies for mental and physical injury protection benefits. [Emphasis supplied.]

In his motion, plaintiff relies on the language of the statute and argues that absent the lack of qualified physicians in Paterson, an issue not before this court but addressed specifically in N.J.S.A. 6A-13d, examinations must be held in the municipality where he resides. In addition, plaintiff offers the names of physician specialists located in Paterson.

Allstate Insurance reasons that N.J.S.A. 13d gives an insurance carrier the right to obtain an independent examination of its insured when there is a claim for payment of benefits. Although the doctors' offices were not located in the municipality where plaintiff resides, defendant argues that there is no basis for plaintiff's refusal to submit to the examinations, especially since all but one of plaintiff's treating physicians are located outside of Paterson. Plaintiff regularly and frequently visited a chiropractor in Ridgewood, New Jersey, a location farther from Paterson than either Clifton or Passaic. This fact is deemed irrelevant by the court; the statute in no way regulates plaintiff's choice of doctors.

Defendant concludes that its right to request a physical examination obligates the claimant to cooperate if the locations are contiguous and attendance is not inconvenient. Inconvenience is not the test.

In order to find defendant's argument persuasive, we must interpret "within the municipality" to mean not only a geographic

designation but also a permissive authority for an insurer to require an insured to attend a medical examination at a location contiguous and ...


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